Opinion
No. 56318-1-I.
July 31, 2006.
Appeal from a judgment of the Superior Court for Snohomish County, No. 03-1-02451-6, David F. Hulbert, J., entered February 4, 2005.
Counsel for Appellant(s), Nielsen Broman Koch Pllc, Attorney at Law, 1908 E. Madison St, Seattle, WA 98122.
Eric Broman, Nielsen Broman Koch PLLC, 1908 E. Madison St, Seattle, WA 98122-2842.
Matthew R. Ruth — Doc #879492 (Appearing Pro Se).
Andrew Peter Zinner, Nielsen, Broman Koch, PLLC, 1908 E Madison St, Seattle, WA 98122-2842.
Counsel for Respondent(s), Lisa Danette Paul, Attorney at Law, Snohomish Co Pros Ofc, 3000 Rockefeller Ave, Everett, WA 98201-4060.
Affirmed by unpublished per curiam opinion.
Matthew Ruth challenges his convictions for two counts of first degree assault, arguing that several incidents of prosecutorial misconduct and ineffective assistance of counsel deprived him of a fair trial and that firearm enhancements imposed by the trial court violated Blakely v. Washington. Because Ruth fails to demonstrate any prejudicial error at trial and the jury found that he was armed with a firearm during each crime, we disagree and affirm.
FACTS
In November 2003, Matthew Ruth and his girlfriend Renee Woerner lived in a trailer in Snohomish County. Jeremy Custer rented a house nearby on the same property. Following a confrontation in the trailer on the afternoon of November 5, Ruth shot Custer and his friend Drew Eden. The State charged Ruth with two counts of first degree assault with a firearm.
At trial, Custer testified that when he came home that afternoon, Ruth, Woerner and Eden were at his house and he noticed that his headphones were missing. Because he believed Ruth had borrowed his things in the past, such as DVDs, CDs and marijuana, he asked Ruth if he could look in the trailer for his headphones. Ruth agreed and Custer followed Woerner into the trailer. Custer and Woerner sat on the bed while Ruth stayed by the door. When Ruth began shouting that Custer was being disrespectful and accusing him of stealing, Eden also came into the trailer. Despite Custer's efforts to reassure him, Ruth pulled out a gun and began shooting, hitting Custer three times.
Eden testified that when Custer came home, he asked Ruth if he could look in the trailer for his headphones and Ruth agreed. Eden stayed in the house until he heard Ruth shouting from inside the trailer. Eden then approached and entered the trailer and saw Woerner and Custer sitting on the bed with Ruth facing them near the doorway. When Ruth began shooting at Custer, Eden followed Woerner out of the trailer and Ruth shot Eden in the back.
Ruth testified that he moved into the trailer to work with Custer on his music business but later began to believe that Custer's main business was money laundering and illegal drug activity. He claimed that he had seen Custer and Eden with guns and drugs and heard that they had killed people.
On November 5, Custer accused Ruth of stealing drugs from him and threatened to rape Woerner and then kill her and Ruth and bury them at a farm. As Custer and Eden followed Woerner and Ruth into the trailer and pulled out their guns, Ruth grabbed his gun and began shooting to get them to leave.
Following trial, the jury found Ruth guilty of both counts as charged. The trial court sentenced Ruth within the standard range and included two 60 month sentence enhancements for use of a firearm.
Ruth appeals.
DISCUSSION
Right to Confrontation
Ruth first contends that the prosecutor violated his constitutional right to confront witnesses by referring to extrinsic evidence of prior statements to impeach him and then failing to properly introduce evidence of the statements. In particular, the prosecutor cross-examined Ruth without objection as follows:
Q. . . . Did you tell Donny Poole that you just freaked out, got weirded out, and shot them?
A. I told Donny Poole that.
Q. Did you?
A. No, sir. I did not. I didn't tell Donny Poole anything about my case.
Then, during rebuttal, the prosecutor argued, also without objection, He shot them because he was angry. He was angry because he knew that Jeremy Custer, if permitted to look through the drawers, would find his property. That made him mad. That made him paranoid. That freaked him out. That weirded him out. And he pulled out the pistol and shot him.
Relying on State v. Yoakum and State v. Babich, Ruth contends that the prosecutor's failure to perfect the impeachment by producing Poole's testimony and the improper insinuation that Ruth confessed to his friend allowed the jury to consider the statement as substantive evidence. During cross-examination in Yoakum, the prosecutor repeatedly referred to an apparent transcription of an interview conducted by police to contradict the defendant's trial testimony without properly laying the foundation for impeachment or producing rebuttal testimony concerning the alleged questions and answers of the interview. The Supreme Court reversed, holding that the effect of the cross-examination `was to place before the jury, as evidence, certain questions and answers purportedly given in the office of the chief of police, without the sworn testimony of any witness,' in a manner prejudicial to the defendant's rights.
37 Wn.2d 137, 222 P.2d 181 (1950).
68 Wn. App. 438, 842 P.2d 1053, review denied, 121 Wn.2d 1015 (1993).
Yoakum, 37 Wn.2d at 138-39.
Id. at 144.
In Babich, the prosecutor `engaged in protracted impeachment' of one witness and a `less extensive' cross-examination of another witness based on an apparent transcript of conversations allegedly recorded by an informant on a body wire without introducing extrinsic evidence of the conversation to rebut the witnesses denials that the defendant was a known drug dealer. Then during closing, the prosecutor argued that the defendant was a known drug dealer, citing the body wire conversations which were never introduced into evidence.
Babich, 68 Wn. App. 445-46.
Id. at 446.
These cases are inapposite. Here, Ruth had testified on direct that Custer's threats `totally freaked [him] out,' that he started shooting to get Custer and Eden to leave the trailer because he was afraid they were going to kill him and Woerner, and that he went to Poole's house after the shooting. After the quoted cross-examination questions and Ruth's conflicting answers, the prosecutor did not mention Poole again. The prosecutor's use of the words `freaked him out' and `weirded him out' in argument did not necessarily suggest or insinuate anything about Poole.
Moreover, even if the jury somehow believed that Ruth had made such a statement to Poole, Ruth never denied that he was `freaked out' and that he shot Custer and Eden. Nothing in the prosecutor's question suggested that Poole would testify in a manner inconsistent with Ruth's testimony or claim of self-defense.
On this record, Ruth has failed to demonstrate a violation of his right to confrontation.
Prosecutorial Misconduct
Ruth next argues that his conviction must be reversed based on three incidents of prosecutorial misconduct. In particular, he contends that the prosecutor (1) stated his personal opinion, (2) misstated the law of self-defense, and (3) vouched for the credibility of Custer and Eden. Ruth objected to the first two incidents at trial and the trial court later denied his motion for a mistrial on those grounds.
To prevail on a claim of prosecutorial misconduct, Ruth must show both improper conduct and prejudicial effect. Prejudice is established only if there is a substantial likelihood that the misconduct affected the jury's verdict. Where the trial court denies a motion for mistrial based on prosecutorial misconduct, we review the ruling for abuse of discretion. Failure to object to an improper remark constitutes a waiver of error unless the remark is so flagrant and ill intentioned that it causes an enduring and resulting prejudice that could not have been neutralized by an admonition to the jury.
State v. Roberts, 142 Wn.2d 471, 533, 14 P.3d 713 (2000).
Id.
State v. Ray, 116 Wn.2d 531, 549, 806 P.2d 1220 (1991).
State v. Russell, 125 Wn.2d 24, 86, 882 P.2d 747 (1994), cert. denied, 514 U.S. 1129 (1995).
First, Ruth identifies as misconduct the prosecutor's statement of personal opinion in closing regarding Ruth's claim that Custer and Eden were drug dealers who killed people and threatened to rape Woerner, `I wouldn't pay any attention to it based on the testimony you have heard here.' We review the prosecutor's comments `in the context of the entire argument, the issues in the case, the evidence addressed in the argument and the instructions given.' `[P]rejudicial error does not occur until it is clear that the prosecutor is not arguing an inference from the evidence, but is expressing a personal opinion.'
State v. Bryant, 89 Wn. App. 857, 873, 950 P.2d 1004 (1998) (citing Russell, 125 Wn.2d at 85-86), review denied, 137 Wn.2d 1017 (1999).
State v. Swan, 114 Wn.2d 613, 664, 790 P.2d 610 (1990), cert. denied, 498 U.S. 1046 (1991).
After reviewing the elements of the charged crimes, the prosecutor turned to Ruth's testimony and argued,
That's nonsense, Ladies and Gentlemen. The instruction says you and you alone determine the credibility of the witnesses in the case. The judge won't do it for you, I can't do it for you. You have to decide who is telling the truth and who isn't. That's the main function. The other corollary to that is, you can use your common sense. Because just because you're sitting here doesn't mean you threw common sense out the window when you were impaneled as jurors. You can use your collective life experience to sit down and evaluate the various versions of the testimony you heard. And if you do that, you'll have to conclude that the defendant's version of those events is not only preposterous, it's laughable. And frankly, just an attempt to blame the victims of this crime for something they didn't do. Don't go that way, Ladies and Gentlemen.
He said that they both entered, kind of chased him and kind of barged in and they both had guns. Although they both testified they don't own guns and never had guns. And that he just started shooting. But as I asked him if they had guns, why didn't they shoot because — well, because he was so fast he got the drop on them. That doesn't make any sense.
The story about they were going to rape his girlfriend. Do you think those two men were going to do that? You saw them, you heard them. Do you think that they are big-time drug lords intent on wiping out people they didn't like? Again, ludicrous. Ridiculous. I wouldn't pay any attention to it based on the testimony you have heard here.
Rather than a clearly improper expression of personal opinion, our review of the record demonstrates that the prosecutor's argument properly challenged Ruth's credibility based on the evidence presented at trial. Moreover, given the court's instruction, which the jury is presumed to follow, that the jurors must judge credibility of witnesses and disregard any statement by the attorneys not supported by the evidence, the trial court did not abuse its discretion in denying a mistrial on this basis. Ruth next contends that the prosecutor misstated the law and urged the jury to disregard the instruction stating that when a person is in a place he has a right to be and has reasonable grounds for believing he is being attacked, `[t]he law does not impose a duty to retreat.' Following the defense argument that Ruth had done the only thing he could do given the circumstances, the prosecutor argued in rebuttal:
State v. Johnson, 124 Wn.2d 57, 77, 873 P.2d 514 (1994).
The application of force here was disproportionate, excessive and illegal considering what the provocation was. You cannot in your own home, or in your car, or in the street, shoot down people who haven't threatened you, who haven't approached you with a weapon and are basically sitting there. Don't forget, he was sitting down when he got shot three times. Drew Eden was shot in the back. His belief, if you want to call it that, was not reasonable. He has to reasonably believe. And that means outside looking in. Objectively speaking, was that reasonable? Would a normal, prudent person think under those circumstances that it was reasonable to pull out a pistol and shoot a person three times that hadn't threatened you? Would a reasonably prudent person looking at this think that it was reasonable to shoot someone in the back who hadn't threatened you? No. And you know that because common sense tells you that. The force has to be proportionate to the threat. There was no threat here, so there could be no application of force.
He shot them because he was angry. He was angry because he knew that Jeremy Custer, if permitted to look through the drawers, would find his property. That made him mad. That made him paranoid. That freaked him out. That weirded him out. And he pulled out the pistol and shot him. To say that the defendant was afraid because of what had gone on, nothing had gone on. We're going back to the Cali cartel theory that Drew Eden and Jeremy Custer were the masterminds of a vast criminal enterprise, and that he was afraid because of that. But there is no evidence of that. None, zip, zero. The only person, apparently, that believed that is the defendant. But it wasn't based on reality. It wasn't based on facts. It wasn't based on anything. Why? Because it's not true. Simply not true. His word is he saw them armed. They both testified that they don't own firearms. They don't look like guys that pack heat to you, do they? But according to the defendant, he was afraid because they are always with guns and they murder people and they bury them in the pasture.
The only thing he could think to do. I like that. That's what [defense counsel] said. If you recall, the defendant was standing right next to the door, looking into the bedroom, when he pulls out the pistol and starts to blast. The door is right there. If he is so threatened, all he has to do is leave. Call the cops.
[Defense Counsel]: Object. There is an instruction on that. Move to strike.
[Prosecutor]: It's argument.
THE COURT: I agree it is argument. The jurors will make their own determination.
[Defense Counsel]: Ask for a limiting instruction.
THE COURT: No. That's fine. You may proceed.
[Prosecutor]: He didn't have to pull out a gun. The bottom line is, he didn't have to because he wasn't threatened. There were options, in other words.
Just because the defendant believes this, it doesn't mean it's reasonable. [Defense counsel] said it was the only thing he could think of to do. That may be the case. Maybe that was the only thing he could think of to do.
But the problem is, based on the circumstances, that was not a reasonable thing to do, that was not a reasonable belief that he was about to get injured. Again, given the facts, he was not entitled to use any force at all.
Rather than misleading the jury and misstating the law by implying that the law required Ruth to leave the trailer rather than shoot Custer and Eden, the record reflects that the main focus of the prosecutor's argument was that Ruth did not have reasonable grounds to believe that he was being attacked. Given the evidence in the case and the entire argument, as well as the trial court's statement, `I agree it is argument. The jurors will make their own determination,' Ruth fails to demonstrate prejudicial misconduct or establish that the trial court abused its discretion by denying his motion for a mistrial.
Ruth also contends that the prosecutor improperly vouched for the credibility of Custer and Eden. The prosecutor argued without objection:
You saw Drew Eden. You saw Jeremy Custer. You saw their demeanor on the stand. Do they look like murderous thugs? Did they sound like murderous thugs? Did they act like dealers of pounds and pounds and pounds of drugs? No. To hear the defendant, you would think that Drew Eden and Jeremy Custer were major league criminals, giants of the criminal underworld. So good, so involved, and so connected that the Columbia cocaine cartel would be green with envy.
Jeremy Custer and Drew Eden are fair and impartial normal young men in this day and age. They might smoke a little pot. They are into music. But they are basically good kids. I think you probably would be able to tell that from their testimony. They are not anything remotely even conceivably like the defendant has characterized them in this trial. I urge you to reject the defendant's fantasies. I urge you to carefully consider the testimony of Jeremy and Drew and find the defendant guilty as charged. . . .
His word is he saw them armed. They both testified that they don't own firearms. They don't look like guys that pack heat to you, do they? But according to the defendant, he was afraid because they are always with guns and they murder people and they bury them in the pasture.
In each instance, our review of the entire argument indicates that the prosecutor properly urged the jury to make its credibility determinations based on the evidence presented at trial and argued that the testimony supported the State's theory that Custer and Eden were more credible than Ruth. Not only has Ruth failed to demonstrate flagrant and ill-intentioned misconduct, given the jury instructions and the ease with which any confusion regarding the statements could have been addressed by a curative instruction, he cannot establish prejudice.
Right to Remain Silent
Ruth contends that the prosecutor violated his Fifth Amendment right to remain silent by questioning his failure to report the various illegal activities he attributed to Custer and Eden, thereby implying guilt based on his pre-arrest silence. We disagree. The cases he cites do not hold that the State violates the right against self-incrimination by questioning a witness about his silence regarding the alleged crimes of other people when he testifies that those acts form the basis of his reasonable fear of them. The record amply demonstrates that the prosecutor's questions and argument were designed to impeach Ruth's credibility regarding his claimed fear of Custer and Eden rather than to suggest that his silence regarding the alleged unrelated crimes of Custer and Eden supported an inference that he was guilty of the charges against him.
See, e.g., State v. Easter, 130 Wn.2d 228, 242-43, 922 P.2d 1285 (1996) (officer's testimony that vehicular homicide defendant was evasive in response to pre-arrest questioning elicited to insinuate guilt and prosecutor's argument emphasizing pre-arrest silence violated Fifth Amendment); State v. Lewis, 130 Wn.2d 700, 705-06, 927 P.2d 235 (1996) (recognizing pre-arrest silence is not admissible as substantive evidence of guilt of accused but determining that officer's testimony did not amount to a comment on defendant's silence).
Ineffective Assistance of Counsel
Ruth next argues that he received ineffective assistance of counsel when his attorney requested a self-defense instruction that has been disapproved of by Washington courts. To establish ineffective assistance, Ruth must show both deficient performance and resulting prejudice. Prejudice is established where there is a reasonable probability that, except for counsel's unprofessional errors, the result of the proceeding would have been different.
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Thomas, 109 Wn.2d 222, 743 P.2d 816 (1987).
State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995).
In particular, based on defense counsel's request, the trial court instructed the jury that, `A person is entitled to act on appearances in defending himself or another, if that person believes in good faith and on reasonable grounds that he or another is in actual danger of great bodily harm.' Another instruction defined `great bodily harm' as `bodily injury that creates a probability of death, or which causes significant serious permanent disfigurement, or that causes a significant permanent loss or impairment of the function of any bodily part or organ.'
Our Supreme Court disapproved of the use of the term `great bodily harm' in the `act on appearances' instruction in 1997 in State v. Walden, noting that great bodily harm is a distinctly defined element of first degree assault. Division Three of this court held in State v. Rodriguez that a defense attorney's request of the `act on appearances' instruction with the term `great bodily harm' constituted deficient performance based on Walden.
131 Wn.2d 469, 475 n. 3, 932 P.2d 1237 (1997).
121 Wn. App. 180, 185-87, 87 P.3d 1201 (2004).
But the defendant in Rodriquez claimed that he stabbed an unarmed man in self-defense. We also note that the pattern jury instruction for `act on appearances' still includes the term `great bodily harm.'
Id. at 183.
See WPIC 17.04.
But here, Ruth claimed that he was faced with two armed men threatening to rape his girlfriend and then kill them both. If the jury believed him, it would have believed that he faced a threat of great bodily harm. Because there is no likelihood whatsoever that the requested instruction affected the outcome of the trial, Ruth cannot establish prejudice.
See, e.g., State v. Freeburg, 105 Wn. App. 492, 505, 20 P.3d 984 (2001).
Cumulative Error
Ruth next claims that the cumulative effect of trial errors justify reversal. Because he has not established any error, we disagree.
Sentence Enhancement
Relying on State v. Recuenco, Ruth also challenges the five year sentence enhancements imposed for use of a firearm on each count when the special verdict forms referred only to `deadly weapon.' In Recuenco, the trial court based its imposition of a firearm enhancement on the jury's response to a special verdict form regarding use of a deadly weapon. Our Supreme Court reversed and remanded for resentencing on the deadly weapon enhancement, holding that the imposition of a firearm enhancement without a jury finding that Recuenco was armed with a firearm beyond a reasonable doubt violated his Sixth Amendment right to a jury trial as defined by Apprendi v. New Jersey, and Blakely v. Washington.
154 Wn.2d 156, 110 P.3d 188 (2005) (imposition of firearm enhancement where special verdict form asked jury to determine whether defendant was armed with deadly weapon constituted violation of Blakely v. Washington, 542 U.S. 296, which could never be harmless), reversed, 2006 U.S. LEXIS 5164 (June 26, 2006) (Blakely errors are subject to harmless error analysis).
530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).
In State v. Pharr, we distinguished Recuenco because the jury was instructed that it had to find Pharr was armed with a firearm in order to return an affirmative finding to a special verdict form inquiring whether Pharr had a deadly weapon. In particular, the instructions provided:
131 Wn. App. 119, 124, 126 P.3d 66 (2006).
`For the purposes of a special verdict, the State must prove beyond a reasonable doubt that the defendant was armed with a firearm at the time of the commission of the crime.
A firearm is a weapon or a device from which a projectile may be fired by an explosive such as gunpowder.'
Id.
In light of this instruction, we held that `While the terminology in the verdict form was imprecise, the instruction applicable to the special verdict leaves no room for debate: the jury found that Pharr was armed with a firearm.' Unlike the circumstances in Recuenco, the instructions at Pharr's trial did not lead to a Blakely violation.
Id.
Here, the instructions regarding the special verdict forms were virtually identical to that given in Pharr. Another instruction stated `The term `deadly weapon' includes any firearm, whether loaded or not.' As in Pharr, despite the imprecise language of the verdict form, there is no doubt that the jury found Ruth was armed with a firearm, and the instructions did not violate Blakely.
STATEMENT OF ADDITIONAL GROUNDS FOR REVIEW
Ruth argues that by producing State's Exhibit 46, the prosecutor violated a motion in limine prohibiting reference to Woerner's prior allegation that Ruth had assaulted her. Ruth contends that the exhibit contained information that prejudiced him. But the document contained in State's Exhibit 46 labeled `Snohomish Health District' only contains Woerner's name, date of birth, address, phone numbers, the words `Skin Test Type' and some dates. There is nothing on the document referring to Ruth or any charges of assault. He fails to demonstrate error.
Ruth next contends that he received ineffective assistance of counsel when his attorney (1) failed to object to the testimony of Jeremy Sheridan, (2) failed to request a lesser included jury instruction on second degree assault, and (3) failed to object to certain photographs offered as evidence. We strongly presume that defense counsel's conduct constituted sound trial strategy. `The decision of when or whether to object is a classic example of trial tactics. Only in egregious circumstances, on testimony central to the State's case, will the failure to object constitute incompetence of counsel justifying reversal.'
State v. Barragan, 102 Wn. App. 754, 762, 9 P.3d 942 (2000); McFarland, 127 Wn.2d at 335.
State v. Madison, 53 Wn. App. 754, 763, 770 P.2d 662 (citing Strickland, 466 U.S. 668), review denied, 113 Wn.2d 1002 (1989).
Sheridan testified that he met Ruth in jail and Ruth asked him to help him get the State's witnesses to change their testimony or to `disappear.' Ruth contends that Sheridan's testimony would have been excluded as improper propensity evidence based on an objection by his attorney. Because such evidence would have been admissible under ER 404(b) to show guilty knowledge and absence of mistake or accident despite such an objection, Ruth cannot demonstrate deficient performance.
Regarding a lesser-included instruction on second degree assault, in our view, trial counsel chose not to make such a request as a matter of trial strategy. Given the defense theory that Ruth acted in self-defense, counsel's strategy was reasonable.
The State produced photographs of a bloodstained blanket and a hole in the wall of the trailer alleged to be a bullet hole. Ruth contends that counsel should have objected because the police did not test the blood on the blanket to determine its origin and because the hole was not a bullet hole. But because his arguments go to the weight of the photographs as evidence, not their admissibility, counsel's failure to object cannot constitute deficient performance.
Finally, Ruth challenges his sentence, arguing that his sentence exceeds the statutory maximum for his crimes. The trial court imposed a standard range sentence of 105 months confinement plus a 60 month firearm enhancement on each count to be served consecutively. Ruth contends that the trial court erred by sentencing him to more than 123 months total. But first degree assault is a class A felony with a statutory maximum of life imprisonment. Ruth fails to demonstrate error.
Affirmed.
AGID, ELLINGTON and COLEMAN, JJ.